[1991] FCA 124; 53 A Crim R 148

Criminal Law - Crown appeals against sentence - offences of engaging in sexual intercourse without consent in the company of another - sentences of four years' imprisonment and order for release after serving six months upon entering into recognisance containing conditions, including payment of pecuniary penalty of $2000 - disparity of sentences - evenhandedness in sentencing - desirability of adhering to general pattern of sentencing

Practice and Procedure - committal for sentence - Crown practice where Crown wishes to proceed on only some counts on which accused committed

Sentencing - relevant factors - sentencing "child" offenders

Crimes Act 1900 (NSW), ss.92C(2), 92D(2), 556B, 556C(4)(e)

Magistrates Court Act 1930, s.90A

Justices Act 1902 (NSW), s.51A

Childrens Services Act 1986, ss.5, 47, 63

Children's Protection and Young Offenders Act 1979 (SA), s.7

Federal Court of Australia Act 1976, s.24(1)(b), 28(1)

R. v Parker (1985) 1 NSWLR 167

Regina v Paauwe (1971) 2 NSWLR 235

Hallam v O'Dea (1979) 22 SASR 133

The Queen v S. V. and Nates 91982) 31 SASR 263

The Queen v Homer (1976) 13 SASR 377

The Queen v Bond (unreported, ACT Supreme Court, 25 May 1990)

The Queen v Kenta (unreported, ACT Supreme Court, 4 May 1988)

R. v Tait and Bartley (1979) 24 ALR 473

R. v Osenkowski (1982) 30 SASR 212

Geddes [1936] NSWStRp 35; (1936) 36 SR(NSW) 554

Leach (1979) 1 A Crim R 320

R. v Hill [1982] FCA 95; (1982) 6 A Crim R 202

Roberts (1982) 1 WLR 133

Prindable (1979) 23 ALR 665

R. v Visconti (1982) 2 NSWLR 104

R. v Oliver (Court of Criminal Appeal, NSW, 20 March 1980, unreported)

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

R. v Pawa (1976) 2 NZLR 190

Counsel for the Apellant: Mr G. James QC and Mr S. Madden

Solicitor for the Appellant: Director of Public Prosecutions

Counsel for the Respondent: Mr T. O'Donnell David Salah Boudelah

Solicitor for the Respondent: Legal Aid Office David Salah Boudelah

Counsel for the Respondent: Mr R. Livingston Aaron Leon Charlston

Solicitor for the Respondent: Messrs Barker and Barker Aaron Leon Charlston

The appeal in respect of the respondent Boudelah be allowed, head sentence confirmed and non-parole period varied to one year six months.

The appeal in respect of the respondent Charlston be allowed, head sentences confirmed and non-parole period varied to one year six months, both sentences to be served concurrently.

The recommendations that the sentences be served in a minimum security establishment away from hardened offenders be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

These are Crown appeals against the sentences imposed upon the respective respondents in the Supreme Court of the Australian Capital Territory, Canberra, on 18 October 1990.

2. The respondent Boudelah had been committed for sentence in the Magistrates Court, Canberra, on one charge of engaging in sexual intercourse with the victim without consent in the company of the second respondent contrary to s.92D(2) of the Crimes Act 1900 and one charge of unlawfully assaulting the victim with intent to engage in sexual intercourse with the victim in the company of the second respondent contrary to s.92C(2) of the said Act.

3. The respondent Charlston had been committed for sentence in the Magistrates Court, Canberra, on one charge of unlawfully assaulting the victim with intent to engage in sexual intercourse with her in company with the first respondent contrary to s.92C(2) of the said Act, and two charges of engaging in sexual intercourse with the victim without her consent in company with the first respondent contrary to s.92D(2) of the said Act.

4. In the Supreme Court the Crown elected to proceed against the respondent Boudelah on one count of engaging in sexual intercourse with the victim without her consent in the company of the second respondent, and against the respondent Charlston on two counts of engaging in sexual intercourse with the victim without her consent in the company of the first respondent.

5. The course actually followed was for both respondents to be arraigned separately on those offences upon which the Crown had elected to proceed. Each respondent was asked whether he adhered to his plea in the Magistrates Court in respect of the charge, which the respondent answered in the affirmative. The facts upon which the Crown relied and other evidence were then presented.

6. In respect of the offence of engaging in sexual intercourse with the victim without her consent in company, the respondent Boudelah was sentenced to four years' imprisonment and it was ordered that he be released after serving six months upon entering into a recognizance self in the sum of $2,000 to be of good behaviour for three years, to pay a penalty of $2,000 within two years from his release by regular instalments of not less than $250 per quarter, and to accept the supervision and direction of the nominee from time to time of the Officer in Charge of the Wollongong Office of the New South Wales Probation and Parole Service. The sentencing judge recommended that the sentence be served in a minimum security establishment away from hardened offenders.

7. In respect of the first offence of engaging in sexual intercourse with the victim without her consent in company, the respondent Charlston was sentenced to four years' imprisonment and it was further ordered that he be released after six months upon entering into a recognizance in identical terms to those ordered in respect of the respondent Boudelah, except for the condition that the respondent Charlston accept the supervision and direction of the Officer in Charge of the Shellharbour District Centre (or his or her nominee from time to time), Department of Family and Community Services.

8. In respect of the second offence of engaging in sexual intercourse with the victim without her consent in company, the sentencing judge imposed a concurrent period of four years' imprisonment and ordered that the respondent be released after six months upon entering into the recognizance required in respect of the first offence. He made a similar recommendation concerning the respondent Charlston's detention.

9. It was ordered that the sentences date from 15 October 1990.

10. The Crown has appealed against the sentences imposed upon both respondents on identical grounds, namely that the period fixed before release on recognizance was manifestly inadequate; that the sentencing judge failed to have due regard to the seriousness of the offence(s) and the facts and circumstances surrounding the commission of the offence(s); and failed to incorporate adequate deterrent and retributive factors in the sentence(s) imposed.

11. Before dealing with the substance of the appeals, it is necessary to make some reference to the way in which the Crown proceeded against both respondents. Notwithstanding that the respondent Boudelah had been committed for sentence for two offences, and the respondent Charlston had been committed for sentence for three offences, the Crown proceeded in respect of one offence only in the case of the respondent Boudelah and two offences in the case of the respondent Charlston. When this procedural matter was raised on the hearing of the appeal, the Crown stated that it did not propose to proceed further against either respondent in relation to the remaining count against that respondent, which had not been disposed of in the proceedings in the Supreme Court. No complaint had been made by either respondent in the Supreme Court or on the hearing of the appeals to this Court about the course adopted by the Crown.

12. The committal for sentence procedure is provided in s.90A of the Magistrates Court Act 1930, the relevant provisions of which are:

"90A. (1) This section does not apply in relation to a person

charged with an indictable offence punishable by imprisonment for life.

(1A) ...

(1B) A person (in this section referred to as 'the accused

person') who is before the Court charged with an indictable offence may

at any stage of the proceedings plead guilty to the charge.

(2) The Court may accept or reject the plea but the rejection of

the plea at any stage of the proceedings does not prevent the accused

person from pleading guilty in pursuance of this section at a later

stage of the proceedings and the Court may accept or reject the plea at

that later stage.

(3) ...

(4) ..

(5) Where the Court accepts the plea and -

(a) it does not appear to the Court that it is proper to deal

with the case summarily;

(b) the offence is one that is punishable only on indictment;

(c) the offence is one that may be dealt with summarily if the

accused person consents to its being so dealt with and the

accused person does not so consent;

(d) the offence is one that may, upon the request of prosecutor,

be dealt with summarily and the prosecutor does not so

request; or

(e) this section applies to an accused person by virtue of

section 477 of the Crimes Act, the Court shall commit the

accused person to such sittings of the Supreme Court as the Court

directs and the Supreme Court shall deal with the accused person

accordance with the succeeding provisions of this section.

(6) A committal under the last preceding sub-section shall, for

all purposes relating to the venue or change of venue of

proceedings consequent on that committal, be deemed to be a

committal for trial.

(7) The Supreme Court shall, where it appears to the Supreme

Court from the information or evidence given to or before it

that the facts in respect of which the accused person was

charged before the Court do not support the charge to which

the accused person pleaded guilty or where the accused person

or counsel for the Crown requests that an order be made under

this sub-section, and may, where for any other reason it sees

fit so to do, order that the proceedings before Court at

which the accused pleaded guilty be continued at a time or

place specified in the order.

(8) Except where an order is made in pursuance of the last

preceeding sub-section, the Supreme Court has the same powers of

sentencing or otherwise dealing with the accused person and of finall

disposing of the charge and of all incidental matters as it would hav

had if the accused person, or arraignment at any sittings of the Cour

had pleaded guilty to the offence chargeby the Attorney-General.

(9) The procedure relating to committal for trial applies, as

nearly as may be, to a committal under sub-section (5) of this section and bail may be granted as on a committal for trial, but a person shall not be bound over to give evidence on a committal under that sub-section unless the Court otherwise orders."

13. Section 90A was inserted in the Magistrates Court Ordinance 1930 (as it was then known) by Ordinance No. 12 of 1958 and amended to its present form by Ordinance No. 41 of 1985. It appears to have been adopted from the provisions of s.51A of the Justices Act 1902 (NSW) which was inserted in that Act by Act No. 16 Of 1955 and amended no less than nine times since.

14. Section 90A of the Magistrates Court Act 1930 has not been amended so as to pick up one of the important amendments made to s.51A of the Justices Act. Sub-section (4) of s.51A, in its present form, provides:

"(4) Where a person has, in respect of any charge to which he has

pleaded guilty under subsection (1), been committed under paragraph (c)

of that subsection, the Attorney-General or the Director of Public

Prosecutions may in his discretion direct in writing that no further

proceedings under this section be taken against the person so committed

in respect of that charge.

(a) no further proceedings shall be taken under this section

against the person so committed in respect of that charge;

and

(b) the provisions of section 358 of the Crimes Act, 1900, apply

to and in respect of the person concerned as if he were

under committal for trial and the Attorney-General had

declined to file any information against him."

16. The question is what procedure should be followed where a person has been committed for sentence pursuant to the other provisions of s.90A and the Crown wishes to take no further proceedings under the section against the person so committed in respect of one or more of the charges upon which the person was committed.

17. In my opinion the following observations of Street C.J. in R. v Parker (1985) 1 NSWLR 167 at 171 in relation to the operation of s.51A of the Justices Act are apposite:

"The remedial legislative scheme of s.51A is directed to enabling

an indictable matter to be brought up for sentence without going

through formal committal proceedings in a case in which the

accused has made an election to plead guilty. The plain

legislative intention of the provisions of s.51A is towards

equating, so far as, inter alia, sentencing is concerned,

proceedings under that section to proceedings in which there has

been a verdict of guilty on an indictment."

18. In Regina v Paauwe (1971) 2 NSWLR 235 the Court of Criminal Appeal had to consider two questions referred to it by McClemens J. in respect of a prisoner who had, through his counsel, adhered to his pleas of guilty to certain offences in a Court of Petty Sessions when he appeared on committal for sentence in a Court of Quarter Sessions. The first question was whether he had pleaded properly and in accordance with s.51A of the Justices Act 1902, and secondly whether the prisoner needed to be formally indicted before the Chairman of the Court of Quarter Sessions. The Court held that the announcement by the prisoner's counsel that he adhered to his pleas accorded with the provisions of the Justices Act and was a proper practice. As to the second question, the Court held that no formal indictment was required.

19. In my opinion the procedure which was followed in relation to the present respondents in the Supreme Court was not in accordance with either the practice in such matters or the provisions of s.90A of the Magistrates Court Act 1930. Section 90A provides a machinery for committal for sentence by a Magistrate and, provided the plea of guilty is adhered to, the disposition of the matters to which the accused has pleaded guilty without the necessity of a formal indictment. Street C.J. observed to the same effect in relation to the s.51A procedure in R. v Parker, supra, at p 171.

20. In the absence of any provision similar to s.51A(4), some alternative procedure has to be adopted to dispose of charges upon which the Crown does not wish to proceed. In my opinion the proper course would be to abandon the s.90A procedure altogether and present an ex officio indictment containing those counts upon which the Crown has decided to proceed.

21. It follows that, in my opinion, for the respondents to be arraigned without an indictment on the charges upon which the Crown did wish to proceed was inappropriate procedurally. However, no miscarriage or prejudice to the respondents arose in the proceedings, especially in the light of the statement by the Crown to this Court that no further proceedings will be taken. Nevertheless, the observance of correct procedure in criminal matters is always important so as to ensure fairness to the Crown and to the accused.

22. The facts giving rise to the respondents' convictions as found by the sentencing judge were that on the evening of 19 February 1990 and the early hours of 20 February 1990, they had been drinking at a night club in Canberra City and met with the victim. Initially they had acted gallantly and quite properly towards the victim and her female companion. They protected them from the unwelcome advances of an unknown person.

23. The victim's companion was feeling unwell and went home. Thereafter the three remaining persons went down to the area of Regatta Point. They sat down and conversed. Sometime during or before this conversation, either Boudelah or Charlston conceived of the desire to have sexual intercourse with the complainant. His Honour accepted that what followed was not otherwise premeditated.

24. Boudelah suddenly pushed the complainant flat on the ground and Charlston held her down. Boudelah commenced violently to tear off her clothing. Charlston meantime inserted his penis into her mouth and demanded that she "suck it". Boudelah, despite the struggles of the victim, forced his penis into the victim's vagina. He apparently ejaculated inside her. Then Boudelah and Charlston changed positions. Boudelah held the victim down whilst Charlston forced his penis into her vagina and went through the motions of sexual intercourse.

25. The respondents then fled leaving the victim frightened, dishevelled, crying and hysterical. She suffered physically from some abrasions and bruising. She had not been threatened, beaten or struck, or otherwise harmed, but clearly suffered greatly from the trauma of the unlawful and unexpected violence to which she had been subjected in the course of, and constituted by, the sexual assaults.

26. Both respondents were interviewed later that day. Both admitted their guilt. Both cooperated with the police. Both had pleaded guilty. Both expressed remorse. They had spared the victim the trauma and humiliation of giving evidence at committal and at any possible trial.

27. His Honour was satisfied that their remorse was genuine and not wholly selfish. He believed that they did, at least belatedly, realise the seriousness of their criminal behaviour and its effect on their victim.

28. Boudelah was born on 6 July 1971. He was 18 years old when the assault happened. His Honour was satisfied that he was somewhat immature. His Honour accepted that he had mistaken going out with persons who over-indulged in alcohol as being "a man".

29. He had consumed a lot of liquor from the afternoon of the 19th to the early hours of the 20th of February. His Honour accepted that his attack on the victim was not characteristic of his usual conduct or standards. If it had not been for the drink he had taken, His Honour was certain that such animal behaviour as he indulged in would not have happened.

30. Charlston was born on 18 March 1974. He was only 15 years of age at the time of the offences he conduct was uncharacteristic.

31. Boudelah had no police record. Charlston had a minor previous matter of no relevance to the present offences.

32. His Honour considered appropriate sentences and the principles pertaining thereto. In relation to the forms of custodial detention available in the exercise of the sentencing discretion in the Australian Capital Territory, he considered gaol in the New South Wales Corrective Services system, which is where prisoners sentenced to terms of imprisonment in the Courts of the Australian Capital Territory ordinarily serve their sentences. He also considered detention at Quamby Children's Shelter but rejected that form of detention on the grounds that it was "impracticable". Counsel for the respondents informed the Court that his Honour was no doubt referring to the fact that the families of both respondents reside in New South Wales and the respondents' detention in the Australian Capital Territory would impose additional hardship.

33. At the time of sentencing, the respondent Boudelah was 19 years of age and the respondent Charlston was 16 years of age. The provisions of the Childrens Services Act 1986 were therefore applicable in relation to the respondent Charlston. Under the terms of that Act, where a child (by definition, a person who has not attained the age of 18 years) is convicted of an offence by the Supreme Court, the Supreme Court may make such order with respect to the child as the Childrens Court could have made if the child had been convicted by that Court (s.63).

34. The sentencing options available to the Childrens' Court and hence to the Supreme Court range from an order reprimanding the child to imposing a penalty provided by law with respect to the subject offence, with various forms of penalty between those two extremes (s.47). The matters to be considered in proceedings in respect of a child are set out in s.5 in the following terms:

"5. (1) In any proceedings in a court having jurisdiction

in the Territory, whether the proceedings are under this Ordinance

or under some other law, being proceedings against or concerning

or affecting a child, the court shall, in the exercise of its

jurisdiction or powers, seek to procure for the child such care,

protection, control or guidance as will best lead to the proper

development of the personality of the child and to the child's

becoming a responsible and useful member of the community.

(2) In the exercise of a power, whether under this

Ordinance or under some other law of the Territory, by a body,

authority or person, being a power the exercise of which affects

or concerns a child, the body, authority or person shall seek to

procure for the child the matters referred to in sub-section (1).

(3) For the purpose of sub-sections (1) and (2), the court,

body, authority or person shall have regard to such matters as

seem to it or the person to be appropriate and, in particular, to

such of the following as are appropriate:

(a) the need to strengthen and preserve the relationship between

the child and his or her parents and other members of his or

her family;

(b) the desirability of leaving the child in his or her own

home;

(c) the desirability of allowing the education, training or

lawful employment of the child to be continued without

interruption or disturbance;

(d) the desirability of ensuring that the child is aware that he

or she must bear responsibility for anything that he or she

does that is contrary to law; and

(e) the need to protect the community or a particular person

from the violent or other unlawful acts of the child."

35. His Honour took account of those statutory provisions.

36. I refer later to the Crown's submission that the sentences imposed fail to give due weight to factors of general deterrence and retribution. It is desirable to say something about whether those factors may be taken into account in the case of the respondent Charlston, who was still a child within the meaning of the Children's Services Act 1986 (ACT) when he was sentenced.

37. In Hallam v O'Dea (1979) 22 SASR 133 at 136, King C.J. construed the language of s.7 of the Children's Protection and Young Offenders Act 1979 (SA) which is in similar terms to s.5 of the Children's Services Act. Under the Children's Protection and Young Offenders Act, a court in exercising its powers in relation to a child is required to seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and to his development into a responsible and useful member of the community, and in so doing the court is required to "consider" a number of factors. King C.J. observed that the court should therefore, if detention is indicated, impose on the child the period of detention which "will best lead to the proper development of his personality and to his development into a responsible and useful member of the community", taking into consideration the enumerated factors, or such of them as may be relevant and appropriate. He said that the criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender.

38. In the later case of The Queen v. S.V. and Nates (1982) 31 SASR 263, King C.J. referred to his earlier decision in Hallam v. O'Dea and said, at p 266:

"The important thing to observe about s.7 of the Act is that

it does not include the concept of general deterrence. Its impact

is directed towards the individual child. Its purpose is the

development of the personality of the child and his development as

a responsible and useful member of the community. Punishment may

be required to achieve this end and in appropriate cases this may

be by way of a sentence of imprisonment imposed by an adult court.

But the purpose must always be that mandated by the section.

Where it is appropriate to have regard to the protection of the

community, it must be the protection of the community 'from the

violent or other wrongful acts of the child', not the criminal

acts of others who might be deterred by the treatment accorded to

the child before the court. The legislature has quite clearly

eschewed the concept of general deterrence in the treatment of

persons under the age of eighteen years. Similarly, as was

pointed out in Hallam v. O'Dea (1979) 22 SASR at p 136, the

concept of retribution, that is to say 'the observance of a proper

proportion between the gravity of the crime and the severity of

the punishment', has no place in the treatment of a person under

the age of eighteen years. It is of the utmost importance to bear

these considerations in mind when the learned Judge's exercise of

discretion in the present case is considered."

39. Zelling J. agreed with the judgment of the Chief Justice and said that s.7 of the Children's Protection and Young Offenders Act requires a judge to deal with juveniles in a way different to that which he would do in the case of an adult offender. He agreed with the differences between sentencing a juvenile and sentencing an adult as set out in earlier remarks of King J. (as he then was) in The Queen v. Homer (1976) 13 SASR 377.

40. In his separate judgment Matheson J. did not agree with the judgments of King CJ and Zelling J. that s.7 of the Children's Protection and Young Offenders Act curtailed regard to the fundamental principles of the law relating to punishment of offenders which require a court to have regard to factors of general deterrence and retribution.

41. I had occasion to consider this difference of opinion in so far as it was relevant to the operation of principles of general deterrence and retribution in applying s.5 of the Children's Services Act 1986 (ACT) in The Queen v Bond (unreported decision, ACT Supreme Court, 25 May 1990). I there expressed my preference for the opinion of Matheson J. and held that the effect of s.5 of the Children's Services Act 1986 is not to oust general deterrence and retribution as relevant considerations, but to confer dominance on the rehabilitation factor in the exercise of the sentencing discretion in respect of youthful offenders.

42. Having read and re-read the South Australian authorities, I adhere to my view, preferring the conclusion of Matheson J. Such a view does not conflict with the observation of Miles C.J. in The Queen v Kenta (unreported decision, he said that s.5 of the Children's Services Act does no more than set out the principles for sentencing a juvenile offender which have long been recognised and applied by the courts of this Territory and courts elsewhere in Australia.

43. The Court was informed by senior counsel for the Crown that on being sentenced Boudelah was transported to Goulburn Training Centre on the day on which he was sentenced, classified in the second lowest classification and is to remain at that Centre until after appeal and, depending on the result of this appeal, will either stay there or be transferred to a prison camp to serve the balance of his sentence. As he had attained the age of 19 years at the time when sentence was passed, he is being treated in the New South Wales corrective services system as an adult prisoner with due regard being paid to the sentencing judge's recommendation that he serve his sentence in a minimum security establishment away from hardened offenders.

44. The Court was also informed that the respondent Charlston, on being sentenced, was taken to Mt Penang at Gosford and was transferred to Kelong at Unanderra in the State of New South Wales where he will remain until his release. He is being held in custody within the child welfare system of that State.

45. The Crown did not argue that the respective head sentences of four years were inadequate or not otherwise within the sound exercise of the sentencing discretion. The contention on behalf of the Crown was that the orders for release after serving only six months with the imposition of a fine payable over a two year period were manifestly inadequate and failed to give due weight to the factors of general deterrence and retribution, and that the inadequacy is particularly manifest in the case of the respondent Charlston who engaged in two separate forms of intercourse to the total degradation of the young woman.

46. In imposing head sentences of four years and directing that each respondent be released after serving a period of six months on giving security, the sentencing judge was exercising the power conferred by s.556B of the Crimes Act 1900 (NSW).

47. It is to be noted that he did not sentence each respondent and fix a non-parole period pursuant to s.7(1) of the Parole Act 1976.

48. Assuming that each respondent is willing (there was no inquiry on the subject before the sentencing judge) and in due course does in fact enter into the recognisance ordered, he will not be kept in custody any longer than six months. When released, he will not be on parole on such conditions as the Parole Board of the Australian Capital Territory thinks fit (ss.21 and 22 of the Parole Act). Nor will he be liable to have his parole revoked for failure to comply with the conditions of his parole order, as would a prisoner released on parole.

49. The sanction for breach of the recognisances presumably to be entered into by these prisoners is committal to prison for a further term not exceeding the balance of the sentence to be served (s.556C(4)(e) of the Crimes Act 1900 (NSW)). In choosing the option of a fixed sentence and an order for release on recognisance after six months, the sentencing judge has excluded the operation of the parole system.

50. This Court has jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory (Federal Court of Australia Act 1976, s.24(1)(b)) and by definition "judgment" means, inter alia, a sentence. This Court on appeal may, in the exercise of its appellate jurisdiction:

(a) affirm, reverse or vary the judgment appealed from;

(b) give such judgment or make such other order as in all the

circumstances it thinks fit, or refuse to make an order; or

(c) set aside the judgment appealed from, in whole or in part,

and remit the proceeding to the Court from which the appeal

was brought for further hearing and determination, subject

to such directions as the Court thinks fit (s.28(1)).

51. The powers of the Court in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence (s.28(5)).

52. The correct approach of an appellate court on a Crown appeal against inadequacy of sentence is stated in R. v Tait and Bartley (1979) 24 ALR 473 at 476:

"An appellate court does not interfere with the sentence imposed

merely because it is of the view that that sentence is

insufficient or excessive. It interferes only if it be shown that

the sentencing judge was in error in acting on a wrong principle

or in misunderstanding or in wrongly assessing some salient

feature of the evidence. The error may appear in what the

sentencing judge said in the proceedings, or the sentence itself

may be so excessive or inadequate as to manifest such error (see

generally Skinner v R [1913] HCA 32; (1913) 16 CLR 336 at 339-40; R v Withers

[1925] NSWStRp 38; (1925) 25 SR(NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at

249; Griffiths v R [1977] HCA 44; (1977) 15 ALR 1 at 15-17)."

Although an error affecting the sentence must appear before the

appellate court will intervene in an appeal either by the Crown or

by a defendant, a Crown appeal raises considerations which are not

present in an appeal by a defendant seeking a reduction in his

sentence. Crown appeals have been described as cutting across

'time-honoured concepts of criminal administration' (per Barwick

C.J., Peel v R. [1971] HCA 59; (1971) 125 CLR 447 at 452; (1972) ALR 231 at 233). A

Crown appeal puts in jeopardy 'the vested interest that a man has

to the freedom which is his, subject to the sentence of the

primary tribunal' (per Isaacs J., Whittaker v R. supra, at 249).

The freedom beyond the sentence imposed is, for the second time,

in jeopardy on a Crown appeal against sentence. It was first in

jeopardy before the sentencing court."

53. A few years later, King C.J. in R. v Osenkowski (1982) 30 SASR 212 at 212-3 made the following powerful observations:

"It is important that prosecution appeals should not be allowed to

circumscribe unduly the sentencing discretion of judges. There

must always be a place for the exercise of mercy where a judge's

sympathies are reasonably excited by the circumstances of the

case. There must always be a place for the leniency which has

traditionally been extended even to offenders with bad records

when the judge forms the view, almost intuitively in the case of

experienced judges, that leniency at that particular stage of the

offender's life might lead to reform. The proper role for

prosecution appeals, in my view, is (1) to enable the courts to

establish and maintain adequate standards of punishment for crime,

(2) to enable idosyncratic views of individual judges as to

particular crimes or types of crime to be corrected, and (3)

occasionally to correct a sentence which is so disproportionate to

the seriousness of the crime as to shock the public conscience."

54. It is apparently to achieve the first and third objectives that the present appeals are brought.

55. As Jordan C.J. pointed out in Geddes [1936] NSWStRp 35; (1936) 36 SR(NSW) 554 at 555 "the judge should impose such judgment as, having regard to all the proved circumstances of the case, seems, at the same time, to accord with the general moral sense of the community in relation to a crime committed in such circumstances and to be likely to be a sufficient deterrent both to the prisoner and to others". See also Channon (1978) 33 FLR 433 as applied in Leach (1979) 1 A Crim R 320 at 324.

56. There is no difficulty in the case of sexual offences in determining the single voice of the community. In relation to other offences, such as those relating to drugs, there may be stratas of society which hold disparate views. But in the case of sexual offences the voice of the community, through the legislation enacted by Parliament, expresses its abhorrence.

57. In R. v Hill [1982] FCA 95; (1982) 6 A Crim R 202, a Full Court of this Court (Toohey, McGregor and Sheppard JJ.) had to consider the adequacy of a suspended sentence of four years on a rape charge committed by a 15 year old respondent. In ordering that the suspension of the sentence be revoked and a non-parole period of 12 months fixed, the Court referred to rape as a most serious offence and cited what had been said by the Court of Appeal in England in Roberts (1982) 1 WLR 133 at 134-135:

"Rape is always a serious crime. Other than in wholly exceptional

circumstances, it calls for an immediate custodial sentence. This

was certainly so in the present case. A custodial sentence is

necessary for a variety of reasons. First of all to mark the

gravity of the offence. Secondly to emphasise public disapproval.

Thirdly to serve as a warning to others. Fourthly to punish the

offender, and last,

58. In the same case the Court referred to what this Court had said in Prindable (1979) 23 ALR 665 at 668:

"It is essential that crimes of violence should be visited

with punishment sufficiently severe to demonstrate the community's

concern that its members be allowed to live in peace and to

demonstrate that the courts, for their part, will take whatever

action is appropriate to deter others who might disturb that

peace."

"The result of his Honour's decision to suspend the

sentences was, in our view, to produce a sentence so lenient that

it did not accord with the general moral sense of the community

and so lenient that it was unlikely to be a sufficient deterrent

to others: see per Jordan C.J. in Geddes [1936] NSWStRp 35; (1936) 36 SR(NSW) 554;

Channon (1978) 33 FLR 433, at p 436."

59. On the hearing of these appeals the Crown furnished details of sentences imposed for sexual offences over the last 10 years or so in the Supreme Court of the Australian Capital Territory and Courts in New South Wales, Queensland, Victoria, South Australia, Western Australia and Tasmania. It is apparent from the schedule of sentences provided that there is no recorded instance of a sentence of a fixed period of six months with release upon recognisance on conditions which include payment of a pecuniary penalty over a period of two years.

60. Of course, an appellate court should be cautious in adopting sentences imposed in previous cases as a guide to an appropriate sentence in the instant case. The details of the offences reflected in the schedule and the subjective factors in relation to each prisoner have not been explored in the statistics. Nevertheless, it must be said that in adopting the sentencing option which the sentencing judge adopted in these cases, he has taken a novel approach to reflecting the moral sense of the community.

61. It appears that in adopting that novel option of sentencing his Honour was particularly concerned about the impact of a gaol sentence upon the respondents. He noted that in the New South Wales prison system there is now no remissions system and that the objective of fair discipline, useful employment and training in an atmosphere of physical safety is not likely to be realised.

62. It further appears from the sentencing judge's remarks on sentence that he was of the opinion that the respondents ought to make some reparation for the fact that they had caused considerable harm to the victim and should pay by experiencing similar shame and humiliation to that which the victim suffered by being deprived of her liberty for a time. He went on to say that "the suffering of a term in custody cannot be reduced below that which ... at least equates to the suffering (so far as it can) they inflicted on their victim".

63. It is within the knowledge of mankind and the experience of the courts that rape cases can vary markedly, unlike some other crimes such as armed bank robberies or ordinary breaking, entering and stealing from a suburban home. The crime of rape embraces a wide range of criminality, but in the orderly administration of the criminal law, no less than in other crimes, the preservation of relativity in sentences passed is necessary.

64. In R. v Visconti (1982) 2 NSWLR 104 at 107, Street C.J. referred to what he had previously said in R. v Oliver (Court of Criminal Appeal, 20 March 1980, unreported) upon the need to pursue what he described as the ideal of evenhandedness. In my opinion his remarks are directly relevant to these appeals:

"The second initial consideration is the ascertainment of

the existence of the general pattern of sentencing by criminal

courts for offences such as those under consideration. The task

of the sentencing judge, no less than the task of an appellate

court, is to pursue the ideal of evenhandedness in the matter of

sentencing. Full weight is to be given to the collective wisdom

of other sentencing judges in interpreting and carrying into

effect the policy of the legislature. That collective wisdom is

manifested in the general pattern of sentences currently being

passed in cases which can be recognized judicially as relevant to

the case in hand. This is not to suggest that sentences are to be

arbitrarily dictated by mathematical application of statistics.

There is an enormous difference between recognizing and giving

weight to the general pattern as a manifestation of the collective

wisdom of sentencing judges on the one hand and, on the other

hand, forcing sentencing into a strait jacket of computerization.

There is, moreover, always a danger, as is recognized on the civil

side in the assessment of general damages, of seeking to use a

factual assessment in one case as a legal precedent or authority

to govern the decision in another."

65. Street C.J. went on to cite comment in the High Court by Jacobs J. in Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 326-327 on the undesirability of disparity in sentences:

"Disparity of sentencing standards is a very serious

deficiency in a system of criminal justice. This is coming more

and more to be recognized. See for instance, most recently, the

Report of the Twentieth Century Fund Task Force on Criminal

Sentencing entitled 'Far and Certain Punishment' (1976), whose

distinguished members were drawn from the judiciary, the law

schools, and law enforcement agencies in the United States. ... It

is the task of a court of criminal appeal to minimize disparities

of sentencing standards yet still recognize that perfect

uniformity cannot be attained and that a fair margin of discretion

must be left to the sentencing judge. ...

The deterrent to an increased volume of serious crime is not

so much heavier sentences as the impression on the minds of those

who are persisting in a course of crime that detection is likely

and punishment will be certain. The first of these factors is not

within the control of the courts; the second is. Consistency and

certainty of sentence must be the aim. I entirely agree with the

statement of p 6 of the Report to which I have already referred

that where equal treatment (i.e. consistency in sentencing) is not

the rule a potential offender is encouraged to play the odds,

believing that he will be among those who escape serious sanction.

Certainty of punishment is more important than increasingly heavy

punishment. According to the Task Force Report at p 7 this view

is now widely shared by liberals and conservatives alike and is

emerging in the United States as the key element in proposals for

sentencing reforms."

66. See also the remarks of the Court of Appeal in New Zealand in R. v Pawa (1976) 2 NZLR 190 at 191 where reference is made to the important supervisory function of the Court of Appeal to ensure, within reasonable limits, the evenhanded administration of justice throughout the country.

67. The passages cited above are clear authority for the proposition that the appellate jurisdiction extends to correcting a sentence which is out of line with the commonly accepted pattern.

68. Having drawn upon the statistics for the purpose of informing myself upon the general pattern of sentencing, and my own experience in rape cases that have come forward in the Australian Capital Territory and other parts of Australia in recent years, I have come to the conclusion that the sentences imposed upon the respondents were so inadequate as to warrant this Court's intervention.

69. It is proper to give full weight to the sentencing judge's endeavour properly to reflect the subjective factors relating to each respondent. It is also proper, as Street C.J. warned, not to force sentencing into a strait jacket of computerization. But in my opinion, the sentences imposed are so lenient and so much at variance with sentences ordinarily imposed in sexual offences of the type committed by the respondents that more severe sentences must be imposed.

70. I would, in the light of the Crown submissions in these appeals, in respect of the respondent Boudelah, confirm the head sentence of four years' imprisonment and fix a non-parole period of one year, six months.

71. In respect of the respondent Charlston, I propose a similar sentence, there being no ground for distinguishing between the two accused for the reasons found by the sentencing judge. For each of the two offences of engaging in sexual intercourse with the victim without her consent and in the company of the respondent Boudelah, I propose a head sentence of four years' imprisonment and a non-parole period of one year, six months to be served concurrently.

72. The sentencing judge's recommendations that the sentences be served in a minimum security establishment away from hardened offenders should be confirmed. The substituted sentences should date from 15 October 1990.

Appeal by the Crown against sentences imposed by the Supreme Court of the Australian Capital Territory.

2. David Salah Boudelah was convicted and sentenced, on his plea of guilty, on one count of having, in company with Aaron Leon Charlston, engaged in sexual intercourse, on 20 February 1990 in the Australian Capital Territory, with Kerry Ann Bolitho without her consent and knowing that she had not consented, contrary to s.92D(2) of the Crimes Act 1990. Charlston was convicted and sentenced, on his plea of guilty, on each of two counts for the same offence, on the same woman, in company with Boudelah, on the same date. The offences were all committed at the same place and at about the same time. Boudelah was sentenced to 4 years' imprisonment. In exercise of power conferred by s.556B of the Crimes Act the learned judge directed that Boudelah be released, upon his giving security by a recognisance in the sum of $2,000 that -

(a) he be of good behaviour for three years from his

release;

(b) he pay to the Territory a penalty of $2,000 "within

two years from your release by regular instalments of

not less than $250 per quarter"; and

(c) that he accept the supervision and direction of the

nominee from time to time of the officer in charge of

the Wollongong office of the New South Wales

Probation and Parole Service;

after he had served six months of the sentence. In respect of each of the counts upon which Charlston was convicted a sentence was imposed and directions were given identical with those in respect of Boudelah. It was ordered that the two sentences imposed on Charlston be served concurrently.

3. The offences were committed on 20 February 1990. Miss Bolitho was born on 9 November 1970, Boudelah on 6 July 1971 and Charlston on 18 March 1974. She and a female friend were on the evening of 19 February 1990 in a Canberra night club where they and others in the same employment were holding a celebration. Her friend invited Boudelah and Charlston, who were strangers to the young women, to join them at the girls' table, so that another male whose attentions to them were unwelcome should be deterred from continuing those attentions. The two men told the girls, as was the fact, that they were working in a sideshow at the Canberra Show. The four drank together amicably until Miss Bolitho's friend became ill and was taken to a nearby taxi rank where she took a taxi to her home. The other three resolved to go to Regatta Point to look at the Captain Cook Memorial Fountain. after the two men had walked away from Miss Bolitho to inspect briefly some feature of the landscape at Regatta Point and had returned and sat beside her on the grass, Charlston tried unsuccessfully to kiss her. Then she was held down, her clothes were removed, she was raped by Boudelah while Charlston fellated her. Then Charlston raped her while Boudelah held her arms. The respondents then left. Later on 20 February they were pointed out to police by Miss Bolitho at the Canberra Show. Both admitted the offences to police.

4. When the two men were sentenced in October 1990 Miss Bolitho was shown by evidence to be still enduring mental distress caused by the attack.

5. The observations which the learned judge made when sentencing the two men show that he had turned his mind to all the relevant considerations. Mr James QC, who appeared with Mr. Murray for the Crown, did not submit that his Honour had not. The ground of the appeal was that, although the sentence of 4 years was within the boundaries of a soundly exercised discretion, and although some exercise of the power to release the respondents before the expiration of those terms might be justifiable, a term of actual imprisonment of 6 months and a monetary penalty constituted a response to these grave crimes so grossly inadequate as to be plainly erroneous in principle.

6. The problem facing the learned judge is unhappily common. Crimes as old as man, as condignly punished as any but a few other kinds of outrage, as offensive to those who look back as to those who would make new all that pertains to the relations between women and men, had been committed by youths in whom alcohol, inexperience and recent release from familiar and local bonds had given free rein to lust. The problem was to proclaim the communal condemnation of their crimes and the communal warning of what others might expect who should commit like crimes, and yet to shield the respondents from prison experiences which not uncommonly influence immature young men to descent into persistently criminal courses.

7. The experiences to which I refer are those inseparable from imprisonment: principally deprivation of opportunities to associate with family and friends, exposure to association with persons committed to criminal or immoral courses, subjection to violence and the fear of violence by other prisoners, and the boredom and sense of hopelessness to which a prisoner is subject. The longer the period during which a youth is exposed to these experiences, the greater the risk that the influence of the experience will prevail upon him to produce in him manifestation of those criminal tendencies which it is in the interest of society to have him overcome.

8. The reconciliation of conflicting aims - condemnation and deterrence on the one hand and preservation of youth from corruption on the other - not uncommonly results in the imposition of a sentence verging on the inadequate. The principal consideration against shortening the period of actual imprisonment in such a case is that members of the community who learn what the court has ordered tend to regard those orders as resulting from a failure to appreciate the enormity of the crime and from an excessive concern for the interests of the offender. In truth the reduction of the period of actual imprisonment below what the crime merits in all the circumstances is, or in my opinion should be, intended to serve the interest of the community rather than that of the offender by minimising exposure of the youthful offender to influences and circumstances known to incline such offenders to further criminal or otherwise socially harmful behaviour. The learned judge's reasons for sentence in my opinion demonstrate that that was his intention in these two cases.

9. As well as having a good deal of evidence about each respondent, the learned judge had the opportunity to observe each of them, and to hear each of them give evidence. It cannot be denied that those opportunities sometimes, by no means always, enable a sentencing judge to form some reasonably confident conclusions about aspects of the character of an offender. The observations his Honour made, concerning the immaturity, remorse and susceptibility to the beneficial influence of family associations of each respondent, strongly suggest that he was in these cases able to form such conclusions, and that he weighed in each case against the serious considerations in favour of a more severe sentence the probability of benefit to the community from the course he in fact took.

10. The two respondents had not long before the commission of the offences taken employment together in the travelling sideshow which had come to the Canberra Show, leaving their families in the provincial city where they had lived. The evidence gave no ground to suspect that either of them had contemplated an attack on the girl until very shortly before the attack occurred. No blows were struck, nor more violence or humiliation inflicted than sufficed to enable them to achieve their sexual gratification. But when all is said which might justify the brevity of the term of actual imprisonment in each case, six months is yet at the extreme verge of what may escape characterisation as manifestly inadequate, in my opinion. The institution of these appeals certainly does not excite surprise. But, not having seen the respondents or the other witnesses who gave evidence before the learned sentencing judge, I am not prepared to say that either sentence should attract that characterisation. I would dismiss the appeals.

11. In my opinion s.5 of the Children's Services Act 1986 (A.C.T.) does not have the effect that any consideration relevant to the sentencing of an adult is denied relevance to the sentencing of a child. And I think that the differences between the terms of that Act and the terms of the corresponding South Australian legislation before the amendment of that legislation in 1990, to which von Doussa J. refers in his reasons for judgment, enable that opinion to be held without contradicting the views expressed in the Supreme Court of South Australia which are set out in the reasons for judgment of Gallop J. Von Doussa J.: I have had the advantage of reading the reasons for judgment prepared by Gallop J. I agree with those reasons, and with the orders proposed by him.

12. I desire to add that in my opinion the reasoning of the majority of the Full Court of South Australia in The Queen v S., V., and Nates (1982) 31 SASR 263 which held that under s.7 of the Children's Protection and Young Offenders Act 1979 (S.A.), as it then stood, the concepts of general deterrence and retribution had no place in the sentencing of a person under the age of 18 years, does not have direct application to s.5 of the Children's Services Act 1986 (A.C.T.). The direction given by s.7 of the Children's Protection and Young Offenders Act was that :

"In any proceedings under this Act, any

court, ... in the exercise of its ...

powers ... shall seek to secure for the

child such care, correction, control or

guidance as will best lead to the proper

development of his personality and to his

development into a responsible and useful

member of the community and, in doing so,

shall consider the following factors:-

..."

Then followed paragraphs (a) to (e) which enumerated the factors. The terms of the section did not permit the consideration of factors not specified. The concepts of general deterrence and retribution were not included amongst those factors.

13. In contrast, the language of s.5 of the Children's Services Act 1986, by its terms, expressly permits the consideration of factors not expressly enumerated. The corresponding direction contained in s.5 is that:

"... the Court ... shall have regard to

such matters as seem to it ... to be

appropriate and, in particular, to such of

the following as are appropriate:- ..."

And then followed the specified factors which are similar to those specified in paras. (a) to (e) of s.7 of the South Australian Act.

14. It is of interest that by the Children's Protection and Young Offenders Act Amendment Act 1990, (S.A.), s.7 of the principal Act was amended to add as a factor to be considered by a sentencing court in South Australia, where the child is being dealt with as an adult for an offence, the deterrent effect that any sentence under consideration may have on the child or other persons.

15. I agree that on its proper construction s.5 of the Children's Services Act 1936 does not prohibit a court in the Australian Capital Territory, in an appropriate case, from having regard to concepts of general deterrence and retribution, although the dominant aim in the exercise of the sentencing discretion of the court must be to "seek to procure for the child such care, protection, control or guidance as will best lead to the proper development of the personality of the child and to the child's becoming a responsible and useful member of the community" (sub.s.5(1)). In other words the dominant aim of the sentencing process must be the rehabilitation of the child.

16. The circumstances surrounding the crimes of the respondents are recited by Gallop J. The nature and seriousness of the crimes by the respondent Charleston made it appropriate for the learned sentencing judge to have regard to the considerations of general deterrence and retribution and I consider he was correct in all the circumstances to draw no distinction between the two respondents in fixing sentence.